State v. Martha Pennington ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE SESSION, 1997 September 30, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9607-CC-00323
)
Appellee, )
) DICKSON COUNTY
)
V. )
) HON. LEONARD MARTIN, JUDGE
MARTHA L. PENNINGTON, )
)
Appellant. ) (DUI CERTIFIED QUESTION OF LAW)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL J. FLANAGAN JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
95 W hite Bridge Road #208
Nashville, TN 37205 DARYL J. BRAND
Assistant Attorney General
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243
DAN M. ALSOBROOKS
District Attorney General
ROBERT S. WILSON
Assistant District Attorney General
P.O. Box 580
Charlotte, TN 37036
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Martha L. Pennington, entered a guilty plea to the
offense of driving under the influence of an intoxicant (DUI) in the Circuit Court
of Dickson County. The Defendant received a sentence of eleven (11) months
and twenty-nine (29) days, with all but forty-eight (48) hours of the sentence
suspended. She was fined $350.00 and ordered to pay court costs. With the
consent of the State and the trial court, Defendant explicitly reserved a certified
question of law dispositive of the case pursuant to Tennessee Rules of Criminal
Procedure 37(b)(2)(i). The certified question of law in this appeal is: “Whether
or not the detention of the defendant, in this case, under the policy of the Dickson
County Sheriff’s Department, constitutes punishment so as to preclude further
prosecution on double jeopardy grounds or violates the defendant’s due process
rights.” After a thorough review of the record, we affirm the judgment of the trial
court.
Counsel for Defendant also represented another client in an
unrelated case, with the identical issue presented as a certified question of law
in this court. See State v. James E. Irwin, No. 01C01-9603-CC-00096, Dickson
County, (Tenn. Crim. App., Nashville, March 27, 1997) (Rule 11 application filed
May 19, 1997). Both cases arose as a result of a policy decision of the Dickson
County Sheriff’s Department regarding post-arrest detention in all DUI cases for
a minimum period of time before allowing release on bail. Testimony of Dickson
County Sheriff Tom W all in the Irwin case was made an exhibit by stipulation of
the parties in the case sub judice. Also, a transcript of the entire suppression
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hearing in the Irwin case, including the findings of fact and conclusions of law in
the trial court in that case was made an exhibit in Defendant Pennington’s case.
Furthermore, the parties stipulated in the present case that the same policy of
post-arrest detention was in effect in Defendant Pennington’s case as was in
effect at the time of the defendant’s arrest in Irwin. The same trial court judge
heard both cases. Only the Defendant testified during the suppression hearing.
The affidavit of complaint which led to the issuance of the arrest warrant for
Defendant and the written results of the Intoximeter 3000 test given to Defendant
following her arrest were admitted into evidence by stipulation.
FACTS
In the early evening hours of September 30, 1995, Officer Andre Orr
of the Dickson Police Department saw a pickup truck driven by Defendant swerve
on Highway 47 in Dickson. Orr turned his patrol car around and began following
the truck, observing it weaving from the left to the right side of the road. He
stopped the vehicle and observed “a strong odor of alcohol” upon the Defendant.
She admitted to drinking one beer. W hile the affidavit of complaint states that
Defendant was given three (3) field sobriety tests, it does not provide the results
of those tests. However, the next sentence in the affidavit states that the officer
placed the Defendant under arrest for DUI. At 6:40 p.m. Defendant registered a
0.13 on the Intoximeter 3000 test.
Following her arrest, Defendant was first taken by Officer Orr to the
Dickson Police Department. There Defendant made a phone call to Joe Fizer,
a bail bondsman. She made arrangements for Mr. Fizer to make her bond and
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pick her up at the Dickson County Jail in Charlotte. Defendant was then
transported from the Dickson Police Department to the jail, arriving at 8:00 p.m.
Mr. Fizer was waiting at the jail when she arrived. However, Defendant was not
permitted to be released until 2:00 a.m. the following morning when Mr. Fizer
took Defendant to meet her boyfriend, who in turn took Defendant to her home.
At the time of Defendant’s arrest, the Dickson County Sheriff’s
Department had a policy of holding a defendant who had been arrested for DUI
a minimum of six (6) hours before allowing the defendant to be released on bail.
Depending upon the defendant’s level of intoxication, he or she might be held
longer than the minimum six (6) hour period. In the words of Sheriff W all, “[t]hose
were minimum times. In other words, after six hours, on a DUI, if the jailor felt
like they were not misbehaving, they could get them booked in and they could
make bond and leave.” Sheriff W all further elaborated that public safety was the
“number one” issue which led to the policy. Also, the difficulty of having an
intoxicated defendant fingerprinted and “booked” was a concern leading to the
policy. Sheriff W all later testified during cross-examination by the State that the
primary reason for the policy was to keep the defendants from being released in
an intoxicated condition where defendants in DUI cases might harm themselves
or third persons.
Defendant testified that in her opinion she was not under the
influence of alcohol while she was being incarcerated on the night of her arrest.
There is no proof that Defendant was unruly, abusive, or uncooperative from the
time of her arrest until she was released on bail. The only proof of her condition
regarding intoxication was the 0.13 intoximeter reading at 6:40 p.m.
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DOUBLE JEOPARDY
On appeal, Defendant argues that both the Tennessee and United
States Constitutions protect a person from multiple punishments for the same
offense. Specifically, in W hitwell v. State, our supreme court stated, “the
Tennessee and United States constitutional provisions against double jeopardy
protect an accused from the peril of both a second punishment and a second trial
for the same offense.” 520 S.W .2d 338, 341 (Tenn. 1975) (emphasis supplied).
However, the recent case of State v. Jefferson C. Pennington, ____
S.W.2d ____, No. 01-S-01-9607-PB-00133, Davidson County (Tenn., at
Nashville, Sept. 8, 1997), addressed a factual situation similar to the case sub
judice. In Jefferson Pennington, the defendant was arrested for DUI in Davidson
County. Pursuant to a policy of the Davidson County general sessions judges
and judicial commissioners, Defendant was held in custody for approximately
eleven (11) hours prior to being allowed to make bail because he had refused to
submit to a breath-alcohol test. Upon motion of defendant, the trial court
dismissed the indictment. Our court affirmed the judgment of the trial court in an
opinion where one judge concurred in results only and another judge dissented.
The lead opinion in our court concluded that further prosecution would violate
double jeopardy principles. The supreme court reversed, and in addressing the
double jeopardy issue stated as follows:
In context, double jeopardy violations arise only when an
individual is twice placed in jeopardy for the same offense.
Customarily, in jury proceedings, jeopardy attaches when the jury is
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sworn, and in nonjury proceedings, jeopardy attaches when the first
witness testifies [citations omitted] . . . .
It is well established that jeopardy does not attach in
preliminary pretrial proceedings. See United States ex rel. Rutz v.
Levy, 268 U.S. 390, 45 S. Ct. 516, 69 L. Ed. 1010 (1925); Collins v.
Loisel, 262 U.S. 426, 43 S. Ct. 618, 67 L. Ed. 1062 (1923). Rather,
to be put in jeopardy, the defendant must be “subject to ‘criminal
prosecution’ and put to trial.” United States v. Grisanti, 4 F.3d 173,
175 (2nd Cir. 1993). The proceeding must be “essentially criminal”
and constitute an action “intended to authorize criminal punishment
to vindicate public justice.” Id. [citations omitted].
Jefferson Pennington, No. 01-S-01-9607-PB-00133, slip op. At 5.
A stipulated fact in Jefferson Pennington was that one of the
purposes of the detention policy was to keep those who are suspected of being
intoxicated drivers off the road for a period of time following arrest. The supreme
court concluded this was a remedial purpose, not punitive, and thus the
defendant’s initial appearance before the judicial commissioner was not an
“essentially criminal proceeding” brought to “vindicate public justice.” Id. at 6.
Based upon Sheriff W all’s testimony regarding the purposes of the
detention, and in light of the decision in State v. Jefferson Pennington, we
conclude that the purpose of the detention under the facts of this case was
remedial, not punitive, and did not constitute an essentially criminal proceeding.
As a result, the detention did not violate any double jeopardy protections afforded
Defendant.
DUE PROCESS
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W hile concluding in State v. Jefferson Pennington that there was no
violation of double jeopardy protections, our supreme court still recognized that
a policy of detaining suspected drunk drivers for refusing to subm it to a test to
determine blood-alcohol content may, if punitive, implicate certain other
constitutional protections. Specifically, the court stated, “To punish an individual
without a prior adjudication of guilt is a violation of due process.” Jefferson
Pennington, No. 01-S-01-9607-PB-00133, slip op. At 7 (citing Kennedy v.
Mendoza Martinez, 372 U.S. 144, 186, 89 S. Ct. 554, 576, 9 L. Ed. 2d 644
(1963)).
The court also held that pretrial detention that is remedial rather than
punitive is permissible as long as the arrestee is afforded sufficient procedural
due process.
In State v. Coolidge, 915 S.W .2d 820 (Tenn. Crim. App. 1995), our
court quoted from Doe v. Norris, 751 S.W.2d 834, 839 (Tenn. 1988), a case
involving a due process issue, as follows:
In determining whether the confinement involved . . . is punishment
. . . [c]ourts must decide whether the confinement is imposed for the
purpose of punishment or whether it is an incident of a legitimate
governmental purpose. Where . . . no showing of an express intent
to punish is made . . . “that determination . . . turn[s] on whether an
alternative purpose to which [the restriction] may rationally be
connected is assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned.”
Coolidge, 915 S.W .2d at 823.
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A two-part test was set forth in Coolidge to determine whether pre-
trial detention qualified as punishment: (1) whether the detention served an
alternative purpose, and (2) whether detention is excessive in relation to the
purpose. 915 S.W .2d at 824. Detention for the purpose of detoxification may
qualify as a legitimate government goal. Id. at 823. The period of six (6) hours
confinement in jail following a blood alcohol level of 0.13 (even though the result
was obtained approximately seven (7) hours prior to her release) is not shown by
this record to be excessive in relation to the stated purpose. Under all of the
circumstances of this case, we agree with the trial court that Defendant’s case
does not justify the granting of her motion to dismiss.
W e affirm the judgment of the trial court.
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____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOSEPH B. JONES, Presiding Judge
___________________________________
W ILLIAM M. BARKER, Judge
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